The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND (ECF No. 22) SIXTY-DAY DEADLINE
Plaintiff Raul Sanchez Zavala ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), which provides a remedy for violation of civil rights by federal actors. Currently pending before the Court is the third amended complaint, filed September 27, 2011. (ECF No. 22.)
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
"[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
To prove a civil rights violation, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
Plaintiff is in the custody of the Bureau of Prisons and is incarcerated at the Federal Penitentiary in Atwater, California where the incidents alleged in the complaint took place. Plaintiff brings this action against twenty six defendants alleging multiple unrelated incidents seeking monetary damages.*fn1
In early December 2006, Plaintiff received two priority mail envelopes from his attorney that were opened. (Third Am. Compl. ¶ 55, ECF No. 22.) The letter from his attorney indicated that his mail had been returned because the original package was too heavy. Plaintiff did not receive notification that his mail had been rejected. (Id., ¶ 58-59.) Plaintiff filed a "cop-out" form regarding the rejection of his mail and received a response from Defendant Gonzaga that he was not entitled to notice that his mail was rejected. (Id., ¶ 65.) A second cop-out was sent on April 6, 2007, and Plaintiff was informed that no mail rejections were found. (Id., ¶ 66.)
On October 10, 2007, Plaintiff gave Defendant Gonzaga an authorization form to receive a package so he could receive documents relating to his conviction from his trial attorney. Defendant Gonzaga told Plaintiff the form was not necessary and refused to give the form back to Plaintiff. Plaintiff filed a cop-out form and received a response back from Defendants Gonzaga and Smith stating that Plaintiff's legal mail package did not need to be pre-approved and no authorization form was needed. (Id., ¶¶ 74, 76.)
Plaintiff sent a letter to his trial attorney requesting his pre-trial and trial case file. (Id., ¶ 75.) When he did not receive the file, he filed a motion to compel release of the documents with the Eastern District of Washington. (Id., ¶ 77.) Plaintiff requested a legal phone call with Defendants Spencer and Reyes and did not receive a response. (Id., ¶ 78.) In response to his motion to compel, Plaintiff discovered that the attorney had sent the documents on February 19, 2008, but they were returned marked "Receiver Did Not Want" and "Package Authorization Not on File." Plaintiff's attorney left several messages with Plaintiff's counselor without receiving a response. (Id., ¶ 80.) Plaintiff filed a BP 8 form that was denied by Defendants VanHorn and Doe B; a BP 9 form that was denied by Defendants Smith and Bell; and a BP 10 form that was denied by Defendant McFadden. (Id., ¶¶ 81-83.) Plaintiff directed cop-outs to Defendants Gonzalez and VanHorn which were ignored. Plaintiff sent a cop-out to Defendant Liwag complaining about mail rejections and was told that there were no rejection forms on file. Plaintiff's motion for reconsideration with the Eastern District of Washington was denied around November 26, 2008. Plaintiff filed a BP 11 form with Defendant Watts that was denied. (Id., ¶ 84.) Plaintiff learned that mailroom staff were Defendants Lopez, Martinez, and Bucio. (Id., ¶ 85.)
Counts One, Two, and Three have previously been dismissed with prejudice and Plaintiff's allegations will not be reproduced in this order.
In December 2006, Defendants Doe C and Doe D opened priority legal mail envelopes from Plaintiff's appellate counsel outside of Plaintiff's presence in violation of the First and Fifth Amendments. (Id., ¶¶ 96, 99.) Plaintiff does not know if Defendants Doe C or Doe D read or copied the contents of the envelope. (Id. ¶¶ 97, 100.)
In December 2006, Defendant D delivered an opened letter to Plaintiff from his attorney. This letter informed Plaintiff that his legal mail had been returned because the box was too heavy for prison standards. (Id., ¶ 102, 103.) By opening this letter, Defendant D learned that Defendant E had rejected Plaintiff's mail and failed to give Plaintiff notice of the mail rejection. (Id., ¶ 103,104.)
Defendants Reyes and Doe A failed to take corrective action after they denied Plaintiff's BP
8. Defendants were on notice that Plaintiff's legal mail had been rejected and no notice of the rejection was provided to Plaintiff. Prior to filing a BP 8, Plaintiff requested mail procedures and discussed his legal mail problem with Defendants Spencer and Reyes. (Id., ¶ 106.) Defendant Reyes violated Plaintiff's Fifth Amendment right to Due Process by ...